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Beware of “Guilt by Silence” – Failing to Speak Up May Evidence Obstruction

On August 20, 2013, in an obstruction of justice case filed against former BP engineer, Kurt E. Mix, Judge Duval of the United States District Court for the Eastern District of Louisiana issued an order allowing the government to introduce evidence that the defendant “sat passively” in a meeting as his superiors made allegedly false statements to government officials. While defendant’s silence is not charged as an independent violation, Judge Duval’s ruling sounds a cautionary note that failing to “speak up” may constitute admissible evidence in support of subsequent criminal actions, even if such silence does not support an independent charge.